Professional Misconduct of Advocates
Professional Misconduct of Advocates is nowhere defined either in the Advocates Act, 1961 or Indian Bar Council Rules because of its wider scope. Under the Advocates Act, 1961, to take disciplinary actions the punishments are prescribed when the credibility and reputation of the profession come under a clout on account of acts of omission and commission by any member of this profession.
Advocacy is a noble profession and the advocate is the privileged and erudite person of the society and his act or behaviour is a model for the society which is necessary to be regulated.
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| Professional Misconduct of Advocates |
Meaning of Misconduct
Meaning of misconduct can be stated as it is the antonym of conduct. Therefore, conduct means behaviour with good manners and treatment shown towards other people. Therefore, misconduct is nothing but misbehaviour with others.
The blacks dictionary defined the term misconduct as, a transgression of some established and defined rule of action, a forbidden act, a dereliction of duty, unlawful behaviour, willful in character, improper or wrong behaviour.
There are some synonyms of the term misconduct which are misdemeanour inappropriate, mismanagement, and offence and the term misconduct is not similar to the term negligence or carelessness.
Meaning of Professional Misconduct
The term "Professional Misconduct" is nowhere defined under the Advocates Act, 1961. The term "Professional Misconduct" simply means improper conduct of an individual with others. In the legal sense, it means a wrongful act which is done intentionally by the people engaged in the profession.
Therefore, it means any activity or behaviour of an advocate violating professional ethics for his selfish ends. If there is an act which results in dispute with his profession and makes him unfit of being in the profession it amounts to professional misconduct.
Before the Advocates' Act 1961, there was the Practitioners' Act 1879. Under this act, there is no definition provided for the turn of professional misconduct but the term unprofessional conduct is being used in the said act. There are some instances of unprofessional conduct are as follows;
- Professional negligence
- Misappropriation
- Dereliction of duty
- Changing sides
- Giving false information
- Contempt of court and improper behaviour before the Magistrate
- Giving inappropriate advice to the clients
- Misleading clients in the court
- Not speaking the truth
- Disowning allegiance to the court
- Moving an application without informing that a similar application has been rejected by another authority
- Forcing the prosecution witness not to tell the truth
- Suggesting bribing the court officials
Therefore, the effect of professional misconduct in result disqualifies an advocate to continue in the legal profession.
In the case of State of Punjab v/s Ram Singh, 1992, The Hon'ble Supreme Court stated that the term misconduct may include;
- Improper or wrong behaviour,
- Moral turpitude,
- Wilful in character,
- Forbidden act,
- Illegal act,
- Transgression,
- Carelessness or negligence in the performance of duty, or
- The act complained of bearing forbidden quality or character.
Professional Misconduct of Advocates
the professional misconduct of advocates is nowhere stated in the Advocates' Act 1961. But the conduct of advocates is described under Chapter V of the Advocates Act 1961.
Advocates Act, 1961
The Advocates Act, 1961 is a comprehensive legislation that regulates legal practice in India and illegal education in India. It envisages the establishment of the Indian Bar Council and the State Bar consisting of various disciplinary committees to deal with the misconduct of the advocates. It also provides for the provisions relating to the admission and enrollment of the advocates and their right to practice.
According to section 9 of the Advocates Act, 1961, every Bar Council must have a disciplinary committee which regulates the conduct and etiquette of the advocates. The Bar Council of India and each State Bar Council have disciplinary committees to exercise disciplinary jurisdiction.
Section 35 of Advocates Act
Section 35 of the Advocates Act 1961 deals with the disciplinary powers of the State Bar councils and the punishment of advocates for their misconduct, which read as follows;
If a person is found guilty of professional misconduct, then it shall be referred add a case to the disciplinary committee and fix a date of hearing and issue cause notice to the advocate and the Advocate General of the State.
The disciplinary committee of the State Bar Council, after being heard by both parties may;
- Dismiss the complaint or where the proceedings are initiated at the instance of the State Bar council directs that proceedings be filed,
- Reprimand the Advocate,
- Suspend the advocate from practice for such a period as it deems fit,
- Remove the name of the advocate from the State roll of advocates.
Section 35 (2) stated that "Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct it shall refer the case for disposal to its disciplinary committee"
The Bar Council of India is the regulatory body and it prescribes standards of professional conduct and etiquette of the advocates and exercises disciplinary jurisdiction over the bar council.
The Bar Council of India also establishes standards for legal education and recognises universities whose law degrees can be used to qualify for a position as an advocate.
Section 49 of Advocates Act
Section 49 of the Advocates Act, 1961, empowers the Bar Council of India to frame rules regulating standards of the professional conduct and duties of an advocate. Various duties of an advocate are prescribed some of them are given below;
1. Duties of an Advocate towards Public
The advocate is a privileged member of society. The advocate has a duty towards the public and society. Being a citizen of this country, the advocate has a huge responsibility to protect the country and lead society.
1. The advocate shall endeavour to make the laws suitable to the welfare of the people and society.
2. The advocate should protect the liberty and freedom of the people.
3. The advocate always guards the fundamental human rights of the people in respect of the constitution.
4. The advocate should always be dedicated to public service.
5. The advocate should make efforts to educate the people and society to respect the law and court of justice.
6. The advocate should always help to constitute Legal Aid Societies to render legal assistance to poor and needy people free of charge.
7. The advocate should provide Legal Education to the illiterate people of the society through the Legal Aid campaign.
2. Duties of an Advocate towards Court
As said above, an advocate is an officer of the court and possesses some duties of an advocate towards the court and also plays an important role in the administration of justice. The advocate is an honoured member of society. Advocate is a member of the Bar Council and to stick with that he has to be lawful and moral not only in the legal profession but also in society. The advocate should follow the principles of professional ethics and etiquette.
The provisions relating to the duties of an advocate to the court are provided under rules 36 to 39 of Part VI of the Bar Council of India Rules deal with the Advocates' duty to the Court.
These are the duties of an advocate to the court;
1. While presenting the case the advocate should conduct themself with dignity and self-respect.
2. The advocate should not influence the decision given by the court.
3. Advocates should maintain the dignity of the judge and always be respectful to the judge not only in the court but also in front of his client and in society.
4. The argument of an advocate before the court must be straightforward, clear and concise and should not waste the valuable time of the judges.
5. The advocate or his client should not resort to any unfair practices.
6. Advocates should maintain the dress code while appearing in court as prescribed in the Advocates Act, 1961.
7. The advocate band and gowns should be worn on the court premises only and not outside the court.
8. The advocate must be tactful while arguing before the court and should not mislead the court.
9. Advocate should not take any case of his family members and relatives.
10. Advocates should cooperate with the bench in the court.
11. Advocates should not laugh or speak aloud in the courtroom.
12. While presenting the case advocate should not leave the court without the permission of the court.
3. Duties of an Advocate towards his Client
The advocate has some duties and responsibilities towards his client. The provisions relating to Advocate’s duty to the client are provided under Chapter – II of Part IV of the Bar Council of India Rules (Rules 11 to 33).
These are some of the duties of an advocate towards his client;
1. The advocate should listen to the difficulties of their clients in all manner.
2. The advocate should give some time to the clients and be polite to clients.
3. The advocate should not leave efforts from his side to win the case of his clients by all illegal means and merits.
4. The advocate should share all things relating to the case of his client.
5. The relationship between the advocate and client comes from contractual obligations and the advocate should perform all the obligations agreed till the period of the contract exists (till the case exists).
6. In some cases, the client shares confidential information about his life with the advocate, hence it is the duty of an advocate that such information should not be disclosed to anyone all his life.
4. Duties of an Advocate towards Opponent Advocate
1. The advocate should consider the opponent advocate as a good friend.
2. The advocate should not quarrel with the other advocate because the clients come and go but the advocates have adhered to the court and see each other in the court.
3. The advocate should make healthy competition with the opponent advocate. If the advocate fights with the opponent advocate then it will spoil his client and degrade the court.
4. The advocate should struggle for the welfare and good of their client that does not mean the advocate and opponent advocate are enemies.
5. The advocate should keep in mind that all advocates are equal before the court.
6. The advocate should not contact the opponent advocate, especially on the case before the court.
7. The advocate should not be stubborn on minor matters.
5. Duties of an Advocate towards Colleagues
All the members of the bar association are known as colleagues. The advocate has some important duties towards colleagues. The provisions relating to the duties of an advocate to the colleagues are provided under Section IV of Chapter II of Part VI of the Bar Council of India Rules. Rules 36 to 39 are dealing with the Advocate's duty to the Court.
1. The advocate could not appear and fight in the case on behalf of the same client where a memo is filed by the other advocate.
2. All advocates are officers of the court.
3. The primary aim of the advocates should be the welfare of the client.
4. All advocates are equal and must respect each other.
5. An advocate should not advertise himself utilizing information relating to the case or any other way.
6. The advocate has to respect all colleagues and should not criticize them.
7. The arrogant attitude of the advocate towards colleagues affects his profession and bar bench relations.
6. Duty to Act in a Dignified Manner
The advocate has to maintain his/her self-respect and the advocate has a right and duty to submit his grievance to the proper authorities whenever there is a proper ground for a serious complaint against a judicial officer like presiding officers, clerks, steno, pion, bailiffs, Nazar office etc. The advocate always acts in a dignified manner while presenting his case before the court.
7. An Advocate Should Communicate in Private
An advocate should not communicate in private to a judge with regard to any matter pending before the judge or any other judge. An advocate should not influence the decision of a court in any matter using illegal or improper means such as coercion, bribe etc.
Case Laws
State v/s Lalit Mohan Nanda, AIR 1961
In State v/s Lalit Mohan Nanda, it was held that it is the duty of an advocate to uphold his client's interest by all fair and honourable means. In this case, the question was raised whether Mr Nanda was guilty of professional misconduct for violating the rules governing the professional conduct of advocates which are established under section 15(a) of the Indian Bar Councils Act, 1926. The Hon'ble High Court of Orissa found that Mr Nanda was guilty of changing sides with the opposite party in the same case.
Shambhu Ram Yadav v/s Hanum Das Khatry, AIR 2001
In this case, the advocate for the respondent side wrote a letter to his client asking for giving bribe to the presiding judge so that the client could win the case. The advocate was found guilty of bribing a judge under section 35 of the Advocates Act, 1961. The State Bar Council barred him from practising before the court for two years.
Contempt of Court as Professional Misconduct of Advocates
Contempt of court as professional misconduct of advocates is defined as an offence of being disobedient or disrespectful towards the court or its officers in the form of rude and wrong behaviour that disregards authority, justice and dignity of the court.
In various cases like Vinay Chandra Mishra, 1995, where there is contempt of court by the advocates, the court held that if any advocate or legal practitioner is found guilty of the act of contempt of court, he/she may be imprisoned for six years and may be suspended from practising as an advocate.
There are many landmark judgments regarding cases in which the advocate disregarded the dignity of the court. In the case of V.C. Rangadurai v/s D. Gopalan and Ors. 1979, the court looked into the matter of professional misconduct in such a way that the decision was made in a humanitarian manner, considering the future of the accused in this case. The court held that “even so justice has a correctional edge, a socially useful function, especially if the delinquent is too old to be pardoned and too young to be disbarred.
Therefore, a curative, not cruel punishment has to be delivered in the social setting of the legal profession”. The court then gave the decision in such a way that it looked at each and every aspect of the case as well as the parties concerned. It adopted a deterrent was of justice mechanism so that the accused person is awarded certain punishments but also provided a warning towards such other people who intend to commit acts of a similar nature.
The judgment turned out to be a landmark in cases concerning professional misconduct as it delivered an effective judgment but did not jeopardize the future of the accused person.
Frequently Asked Questions
What is professional misconduct by an advocate?
Answer: It means any activity or behaviour of an advocate in violation of professional ethics for his selfish ends. If an act creates disrespect to his profession and makes him unworthy of being in the profession, it amounts to professional misconduct.
What is Section 35 of professional misconduct?
Answer: Punishment For Misconduct- Section 35 of Advocates Act, 1961. Professional misconduct can be defined as such behaviour by an employee which is unacceptable and practically against the code of conduct of the organization that he is working with.
What is considered professional misconduct?
Answer: Professional misconduct includes the following: Engaging in acts of gross incompetence or gross negligence on a single occasion, or negligence or incompetence on more than one occasion. Permitting or aiding an unlicensed person to perform activities requiring a license.
What is the punishment for misconduct for the advocate?
Answer: Suspend the advocate from practice for such periods as it may deem fit. (4) Where an advocate is suspended from practice under clause (c) of sub-section (3) he shall, during the period of suspension, be debarred from practicing in any court or before any authority or person in India.
Conclusion
Professional misconduct of advocates has been seen in the recent scenario. Due to Covid-19, where online hearings are taking place and the advocates are not adhering to the dress code and appearing before the Honourable Court in an unprofessional manner and this leads to contrary to their duty towards the court.